Eugene Volokh's Blog, page 249

[Eugene Volokh] School Board Restrictions on "Abusive," "Personally Directed," and "Obscene" Public Comments Violated the First Amendment …

From yesterday's decision in Moms for Liberty-Brevard County v. Brevard Public Schools, written by Judge Britt Grant and joined by Judge Barbara Lagoa:

For many parents, school board meetings are the front lines of the most meaningful part of local government—the education of their children. And sometimes speaking at these meetings is the primary way parents interact with their local leaders or communicate with other community members. No one could reasonably argue that this right is unlimited, but neither is the government's authority to restrict it.

A group called Moms for Liberty brought this lawsuit on behalf of members who say their speech was chilled and silenced at Brevard County School Board meetings. According to the Board's presiding officer, their comments were "abusive," "personally directed," "obscene," or some combination of the three. Because the first prohibition was viewpoint based, the second was both unreasonable and vague, and the application of the third was (at a minimum) unreasonable, these policies are unconstitutional….

We agree with the parties that the school board meetings here qualify as limited public forums because they are created "for certain groups or for the discussion of certain topics." The Brevard County School Board meetings are for parents and community members to "express themselves on school matters of community interest." In a limited public forum, the government's restrictions on speech "must not discriminate against speech on the basis of viewpoint," and "must be reasonable in light of the purpose served by the forum." …

[A.] We start with the policy permitting the Board's presiding officer to interrupt speech seen as "abusive." The way that Board Chair Belford interprets and enforces the rule diverges from the common understanding of the word "abusive." … Belford said the policy would prohibit calling people "names that are generally accepted to be unacceptable." That definition is constitutionally problematic because it enabled Belford to shut down speakers whenever she saw their message as offensive.

The record of enforcement supports the contention that this was the operative definition. At one meeting, for example, she interrupted a speaker who criticized the Board's Covid-19 masking policy as a "simple ploy to silence our opposition to this evil LGBTQ agenda." Belford quickly stopped the speaker, who had not yelled, screamed, or otherwise caused a disruption. In her affidavit, Belford explained that she interrupted him because his "characterization of people as 'evil' was abusive."

Belford interrupted another speaker who was criticizing the Board's policies on gender in school bathrooms and school-sponsored sports. According to Belford, the speaker had engaged in abusive "name-calling" by referring to the "liberal left." Yet another speaker was interrupted for repeating insults leveled at her by protestors outside the Board meeting. In stopping her, Belford contended that the speaker had improperly repeated words that were abusive to the speaker herself. No one likes to be called evil, but it is not "abusive" to use that term….

To be sure, a different policy—one prohibiting viewpoint-neutral characteristics of speech, for example, or explicitly and narrowly defining "abusive"—could be constitutional. But here, the ban on "abusive" speech is an undercover prohibition on offensive speech. Because the government "may not burden the speech of others in order to tilt public debate in a preferred direction," the Board's policy on "abusive" speech is facially unconstitutional….

[B.] [T]he [former] policy prohibiting speakers from addressing individual Board members was … [not] reasonable in light of the meetings' purpose….

The reasonableness test … asks in part whether a restriction on speech is enforced in an arbitrary or haphazard way. Asking if the Board's approach to this policy was "haphazard" is like asking if the sky is blue—enforcement was so inconsistent that it is impossible to discern the standard used to assess which speech was permitted at any given meeting.

At some meetings, speakers were allowed to address Board members by name to give them thanks and praise. Offering thanks, however, was not always a shield; one speaker was interrupted when she tried to thank a Board member for his positive impact on her daughter. And at another meeting, Belford cut off a Moms for Liberty member who tried to personally thank a Board member.

On yet another occasion, Belford said nothing when a local high school student addressed one Board member by name while advocating for her theater group to rehearse in the school's indoor facilities. But when a Moms for Liberty member questioned how he, as a parent, could "stand up for District Two" while having to watch the Board member for that district "behind a plastic prison" (referring to a plexiglass barrier in place during the Covid-19 era), Belford and another Board member interrupted him for calling out one of the Board members and informed him that he could not talk to or about his specific representative.

This kind of inconsistent enforcement is exactly what this Court and the Supreme Court have warned against….

Turning to the current policy, we consider whether disallowing speech that is "personally directed" can stand as reasonable…. Belford first described ["personally directed"] as "[a]nything that's directed at a person." But when pressed for more, she suggested that the policy prohibited speech naming an individual, possibly (but not always) coupled with some sort of personal information about that person. One refrain that Belford repeated in her testimony was that the applicability of the policy "would depend on the circumstances."

Belford followed up with various examples. She explained that "if someone is saying to me, 'My friend Susie's son has an IEP for this,' yes, I'm going to stop them because they're sharing someone else's information that shouldn't be public information." But if the speaker just said "'my daughter's friend said that this occurred in school,' and there's no name, that's a different situation." Just mentioning a name, however, might not be enough: "So if you're saying your wife's name and you're just mentioning her name, I don't know that I could consider that personally directed. If you're saying, 'My friend John was raped by someone or my'—you know what I mean?" Respectfully, we do not.

Belford's own inability to define the policy that she was tasked with enforcing speaks volumes. The track record of this policy's enforcement mirrors Belford's muddled definition. Sometimes just mentioning someone's name was enough to provoke interruption, but other times using a name was met with no resistance. At one meeting, for example, speakers advocating for the rehiring of two coaches were interrupted for naming the coaches and were told to refer to them as "these coaches" instead. But at another meeting, multiple speakers were allowed to address and thank the Superintendent by name throughout the meeting.

Even though Belford's definition seemed to require, at least as a baseline, that a speaker use someone's name to violate this policy, the record reflects several times when speakers were interrupted for personally directed speech even though they did not name anyone—at all. Nor did they direct their speech toward anyone in particular. At one meeting, for example, Belford interrupted a speaker who gestured toward one side of the room and said "I keep hearing this side talk about freedom and their choices." This reference, Belford said, violated the policy against personally directed speech. And at yet another meeting, Belford interrupted yet another comment she said was "personally directed": "The sad fact is that all children do not live with accepting and affirming families. Can you imagine the LGBTQ student who may live with families such as those who were here at the last meeting?" Again, no names.

As these examples illustrate, enforcement of this policy was as inconsistent as the definitions offered to support it….

[The policy also] actively obstructs a core purpose of the Board's meetings—educating the Board and the community about community members' concerns. If a parent has a grievance about, say, a math teacher's teaching style, it would be challenging to adequately explain the problem without referring to that math teacher. Or principal. Or coach. And so on. Likewise when a parent wishes to praise a teacher or administrator. Such communications are the heart of a school board's business, and the ill-defined and inconsistently enforced policy barring personally directed speech fundamentally impedes it without any coherent justification.

To be sure, sometimes meetings can get tense—no one enjoys being called out negatively, and some may even dislike public praise. But that is the price of admission under the First Amendment….

[C.] Last, we turn to the policy prohibiting "obscene" speech…. Obscene speech, [Belford] said, includes "things that are not appropriate for young children. Language that is generally accepted to be profane." Profanity, in turn, includes "things that are sexually explicit" and "words that are typically considered to be inappropriate for use in school." Moms for Liberty challenges this part of the policy not on its face, but as applied—specifically as applied to reading a book from an elementary school library.

Again, it seems clear that at least some iterations of an obscenity policy would be constitutional—obscenity is one of the few unprotected categories of speech under the First Amendment. But that constitutional standard is exceptionally narrow: material is obscene when (1) "the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest"; (2) "the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law"; and (3) "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." So if the Board were to use this part of the policy to prohibit true obscenity, that action would survive under even the strictest review. We do not, however, decide whether or how the school board could properly prohibit other profane or explicit speech at school board meetings, even if it does not rise to the level of true obscenity—that question is not before us.

Instead, the Board used its obscenity policy to bar protected speech, and it did so in a way that impeded the purpose of a school board meeting. During the incident Moms for Liberty cites, a member shared her concern that her child's elementary school library contained inappropriate books. She began reading one, which detailed an in-school sexual encounter:

I tiptoed toward the door, peering through the window at the boy's pants around his ankles squeezed between April's straddled legs as she lay on the teacher's desk. I swung the door open letting a soft light from the hallway shine a spotlight on them. 'Shit!' he muttered.

Belford quickly interrupted the speaker when she got to the word "shit."

That word, though not polite, is also not obscene. Nor is the book's other content, no matter how objectionable it may be as early childhood reading material. Moreover, the content of books in school libraries is a matter of serious community interest. It would be difficult, if not impossible, for speakers to adequately air their concerns about a particular book without informing both the Board and the community about what that book says. Describing the content of a book is not as potent as reading its words—nor is it as informative. And it is remarkable for the Board to suggest that this speech can be prohibited in a school board meeting because it is inappropriate for children when it came directly from a book that is available to children in their elementary school library.

Because this prohibition on obscenity is not about obscenity, and frustrates the purpose of the forum, it is an unreasonable policy, at least as it applies to reading portions of books from school libraries. It is therefore unconstitutional as applied here.

Judge Charles Wilson joined the majority as to everything except "the present prohibition on personally directed speech":

Presently, the Policy allows speakers to "address comments to the Board as a whole, the presiding officer, or to an individual board member." I read this text to suggest that these are the only people speakers can address, not the only people speakers may mention. This appears to me to be both viewpoint neutral and reasonable given the purposes of a school board meeting.

The new Policy bans speakers from directing comments at particular people. But, for example, a parent addressing the entire board may comment about particular teachers or coaches. In addition to remaining viewpoint neutral, I would find this restriction reasonable given the feedback purpose of a school board meeting. We acknowledge a municipal body's interest in conducting orderly meetings. Footage from the meetings indicates the most disruptive comments being those that seemed directed at members of the audience, such as when Jenkins discussed a person who lurked around her home being present in the board room or when people in the crowd began yelling at Jenkins during her same report.

We do not require a limited public forum to have the only reasonable or even the most reasonable restriction on speech, but only a reasonable restriction, given the purpose of the forum. As written, the new restriction on personally directed speech is a viewpoint neutral restriction reasonable in light of the forum's purpose….

Judge Wilson also elaborated on some other factual and legal details; you can see all that in the full opinion.

Alan Gura, Ryan Morrison, and Brett Robert Nolan (Institute for Free Speech) and David Randel Osborne (Goldstein Law Partners, LLC) represent plaintiffs.

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[Eugene Volokh] State Threatens Media with Criminal Punishment for Spreading Supposed Health-Related Disinformation

From a letter sent by the Florida Department of Health General Counsel to a television station about this ad that supports Florida's Amendment 4:

The Florida Department of Health has been notified that your company is disseminating a political advertisement claiming that current Florida law does not allow physicians to perform abortions necessary to preserve the lives and health of pregnant women.

{The advertisement is displayed on the home page of the Amendment sponsor's website under the title "Caroline." See https://floridiansprotectingfreedom.com/. The woman featured in the advertisement states: "The doctors knew if I did not end my pregnancy, I would lose my baby, I would lose my life, and my daughter would lose her mom. Florida has now banned abortion even in cases like mine."}

This claim is categorically false. Florida's Heartbeat Protection Act does not prohibit abortion if a physician determines the gestational age of the fetus is less than 6 weeks. § 390.0111(1), Fla. Stat. After 6 weeks, an abortion may be performed if "[t]wo physicians certify in writing that, in reasonable medical judgment, the termination of the pregnancy is necessary to save the pregnant woman's life or avert a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition." § 390.0111(1)(a), Fla. Stat. The two-physician requirement is waived in the case of an emergency medical procedure. § 390.011(1)(b), Fla. Stat. And while 'physicians must exercise professional skill, care, and diligence to preserve the life and health of a fetus in the third trimester, "if preserving the life and health of the fetus conflicts with preserving the life and health of the pregnant woman, the physician must consider preserving the woman's life and health the overriding and superior concern." § 390.0111(4), Fla. Stat.

The advertisement is not only false: it is dangerous. Women faced with pregnancy complications posing a serious risk of death or substantial and irreversible physical impairment may and should seek medical treatment in Florida. However, if they are led to believe that such treatment is unavailable under Florida law, such women could foreseeably travel out of state to seek emergency medical care, seek emergency medical care from unlicensed providers in Florida, or not seek emergency medical care at all. Such actions would threaten or impair the health and lives of these women.

Under section 386.01, Florida Statutes, "the commission of any act, by an individual, municipality, organization, or corporation … by which the health or life of an individual, or the health or lives of individuals, may be threatened or impaired" constitutes a "sanitary nuisance." The Department of Health, upon determining the existence of such nuisance, must notify the person or persons committing the nuisance "to remove or cause to be removed the same within 24 hours." § 386.03(1), Fla. Stat. If the nuisance is not removed within the time prescribed, the Department is authorized to institute legal proceedings under section 381.0012, Florida Statutes, to obtain an injunction. § 386.03(2)(c), Fla. Stat. The Department is further authorized to "[i]nstitute criminal proceedings in the county court in the jurisdiction of which the condition exists against all persons failing to comply with notices to correct sanitary nuisance conditions." § 386.03(2)(b), Fla. Stat. Creating, keeping, or maintaining a nuisance injurious to health is a second-degree misdemeanor. § 386.051, Fla. Stat.

While your company enjoys the right to broadcast political advertisements under the First Amendment of the United States Constitution and Article I, section 4 of the Florida Constitution, that right does not include free rein to disseminate false advertisements which, if believed, would likely have a detrimental effect on the lives and health of pregnant women in Florida.

The state's theory is thus apparently that it's criminal for people to spread false information about state law that could lead to danger to life or health.

I don't think that's consistent with the First Amendment, even if limited to knowingly false statements of fact. The Supreme Court has held that "prosecutions for libel on government have [no] place in the American system of jurisprudence," regardless of whether the government thinks it can show that the statements are knowingly false: Even outright lies that damage the government's reputation are thus constitutionally protected. Likewise, the 3-Justice dissent in U.S. v. Alvarez concluded that,

[T]here are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern would present such a threat. The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth.

And the 2-Justice concurrence in Alvarez endorsed this view. I would say that, under this rationale, the government can't suppress statements about the law, even if it thinks they are knowingly false, and even if the statements might lead some people to do something that undermines their health.

Recent laws dealing with misinformation in election campaigns have likewise been struck down after Alvarez. See Susan B. Anthony List v. Driehaus, 814 F.3d 466 (6th Cir. 2016); Commonwealth v. Lucas, 472 Mass. 387 (2015); 281 Care Comm. v. Arneson, 766 F.3d 774 (8th Cir. 2014); State ex rel. Public Disclosure Comm'n v. 119 Vote No! Comm., 135 Wash.2d 618 (1998). (Some decisions upheld such laws, but they came before Alvarez. In re Chmura, 608 N.W.2d 31 (Mich. 2000); State v. Davis, 27 Ohio App. 3d 65 (1985).)

To be sure, in some areas, the law can indeed police misinformation (especially knowing lies). Most obviously, if a doctor gives a patient false information that's potentially damaging to the patient's health, the doctor could be held liable for malpractice if harm results, and could be disciplined by the medical board even if harm doesn't result. Likewise, knowing lies about people or businesses can be punished under libel law and related doctrines.

Finally, the federal government has long been seen as having greater authority over broadcast television and radio (for instance, as to profanity or as to the Fairness Doctrine), and the FCC has taken the view that this extends to at least some sort of knowing falsehoods: The "broadcast hoaxes rule" provides,

(a) No licensee or permittee of any broadcast station shall broadcast false information concerning a crime or a catastrophe if:

(1) The licensee knows this information is false;

(2) It is foreseeable that broadcast of the information will cause substantial public harm, and

(3) Broadcast of the information does in fact directly cause substantial public harm.

(b) Any programming accompanied by a disclaimer will be presumed not to pose foreseeable harm if the disclaimer clearly characterizes the program as a fiction and is presented in a way that is reasonable under the circumstances.

(c) For purposes of this rule, "public harm" must begin immediately, and cause direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties. The public harm will be deemed foreseeable if the licensee could expect with a significant degree of certainty that public harm would occur. A "crime" is any act or omission that makes the offender subject to criminal punishment by law. A "catastrophe" is a disaster or imminent disaster involving violent or sudden event affecting the public.

But, as the Federal Communications Commission (which enforces this rule) has noted, "the Commission does not—and cannot and will not—act as a self-appointed, free-roving arbiter of truth in journalism. Even assuming for the sake of argument that Free Press's assertions regarding any lack of veracity were true, false speech enjoys some First Amendment protection, and section 326 of the Communications Act, reflecting First Amendment values, prohibits the Commission from interfering with freedom of the press or censoring broadcast communications…. [T]he Commission has applied [the broadcast hoaxes] rule narrowly in light of the substantial First Amendment concerns involved with the federal government policing the content of broadcast news."

And whatever the permissible scope of such regulations might be, the Florida Department of Health position seems to go far outside them. It applies not just to doctor-patient speech but to political advocacy aimed at the public. It applies not just to broadcasting (which in any case is generally governed by federal regulations, not state ones) but to all media. And indeed, if the Florida statute to which it's appealing is read to cover speech, it wouldn't even be limited to false statements, but could cover true statements and statements of opinion, if their spread might "threaten[] or impair[] people's "health or lives." The Department's action thus seems like an unconstitutional attempt to regulate political advocacy.

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[Samuel Bray] Ghost Guns and the Mischief Rule

Yesterday's argument in Garland v. VanDerStok was about a statutory interpretation by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. At issue is whether the statute allows the ATF to regulate "ghost guns," which are made from do-it-yourself kits and which allow users to evade serial number and background check requirements. Given the tenor of oral argument, the Court seems likely to side with the ATF.

Solicitor General Prelogar made a reference to an "anti-circumvention" principle, and there is a good basis for that principle in a traditional statutory interpretation doctrine. In The Mischief Rule, I describe two functions of the mischief rule: providing a stopping point (a phrase borrowed from Richard Re) and preventing evasion close to the line. The first function predominates and the second is rare. The first function prevents the executive or the courts from taking an old statute and applying it to a new mischief. The second function lets the executive or the courts keep someone from circumventing an old statute with respect to the old mischief.

The ghost guns case, and perhaps most of the recent spate of cases involving expansive agency definitions of gun terms in statutes, can be thought of as instances of the second, less common function of the mischief rule. A ghost gun kit is an obvious circumvention of the tracing related rules (serial numbers, background checks, etc.). The anti-circumvention idea the Solicitor General mentioned is well within the mischief rule, a traditional principle of statutory interpretation.

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[Eugene Volokh] I'm No Fan of "Woke" Ideology, but This Is Going a Bit Far

From Judge Kari Dooley's opinion last week in Indelicato v. Shipman & Goodwin LLP:

Pro se Plaintiff Joseph Indelicato [III] [a Georgetown-trained lawyer] filed this employment discrimination complaint against Defendant Shipman & Goodwin LLP ("Shipman"), in which he claims both religious and race-based discrimination in connection with the termination of his employment as an attorney at the Shipman law firm. Plaintiff, who is a white Christian, alleges that he was terminated as a result of a manufactured harassment complaint by a co-worker of South Asian national origin.

Plaintiff named as additional defendants the United States of America, the Federal Bureau of Investigation, Christopher Wray (Director of the FBI), Georgetown University, Feng K. An, District Judge Sarala Nagala, Tanya Hughes, Jason Thody, Frank Blando, 30 Arbor Street LLC, Matthew Berger, and the U.S. Equal Employment Opportunity Commission. These defendants are alleged to be co-conspirators with Shipman in a multi-year, overarching conspiracy to destroy Plaintiff's life and the lives of other white Christian people.

The opinion goes on in some detail, but closes thus:

[T]he Court concludes that the SAC [Second Amended Complaint] is subject to dismissal in its entirety because the allegations are, simply put, fantastical and delusional and therefore beyond this Court's ability to adjudicate…. As detailed above, the SAC is replete with such fantastical allegations. In support of his purported gender and religion discrimination claims, Plaintiff invokes numerous antisemitic writings and falsehoods (including by citation to Mein Kampf), to allege that there is a vast, primarily Jewish conspiracy involving federal and state government agencies, the judiciary, private law firms, private universities, national political parties, and various foreign nations, which culminated in his termination.

Multiple times, Plaintiff invokes the use of the supernatural by the coconspirators: For example, he claims that "witchcraft" has been used to affect [defendant coworker] Parikh's account of her interactions with Plaintiff. See also SAC ¶ 69 ("The Woke religion 'empowers' its believers through the use of witchcraft …. Modern technology is ripe with witchcraft; for example, a 'deep fake' video, the use of social media bots, and the selective 'upvoting' of posts that promote preferred narratives …."). Plaintiff states that, by using "the Woke religion and its witchcraft, Parikh has achieved the God-like power of life or death over Plaintiff …. If she decides that Plaintiff's career is permitted to continue, it will be so." Id. ¶ 186. He also claims that Satan is directly controlling and dictating the actions of the alleged members of the conspiracy. See id. ¶¶ 7, 29–30, 72; see also id. ¶ 168 ("Shipman fully intended to destroy Plaintiff's career in ritualistic, occult-like fashion from the get-go, and didn't want to scare Plaintiff away from walking into the trap."). Plaintiff alleges that the "Wokeness" conspiracy has created the antichrist. Id. ¶ 17 ("Wokeness is, in biblical terms, the antichrist.").

The SAC alleges that dozens of actors have conspired to deprive Plaintiff of his employment, his housing, and his life. He alleges that members of the conspiracy have used witchcraft, Satanism, covert assassination attempts, and espionage techniques, to discredit him and turn him into a "slave." These allegations, along with countless others in the SAC, are "precisely the sort of conspiracy theories that the Court is powerless to entertain." Although Plaintiff objects to the use of the term, see id. ¶ 430, there is no better word to describe the SAC other than as a manifesto regarding the Plaintiff's world view. And the Court simply does not have the power to adjudicate such claims….

At the end of the day, it is Plaintiff's own summary argument that makes clear this Court's inability to adjudicate the claims he purports to bring. He writes:

Simply put, Plaintiff's analysis of Woke ideology, and how his disagreement with it triggered the series of events described in the SAC, is in no way fanciful or delusional. There really and truly is a global conspiracy unfolding to destroy the Christian faith using Woke ideology, which Plaintiff has really found himself swept into in a way he could have never envisioned in his worst nightmare. It really is the case that anyone who (like Plaintiff) disagrees with Woke ideology is promptly attacked from all sides and removed from society (to the extent possible), defamed, harassed and (if they have any influence) persecuted by American intelligence agencies, and denied basic constitutional and human rights (the same ones Plaintiff complains of, except likely to the exclusion of the Second Amendment, which could only happen in Connecticut).

It really is the case that a series of global catastrophes (disease, economic calamity, famine and thermonuclear world war) are being manufactured to hasten the death or otherwise force the compliance (enslavement) of those people who, like Plaintiff, have been cruelly cast out of the system. Those people are and will continue to be overwhelmingly white, European Christians, who are the only people who have any reason to reject Woke ideology, not because they are racists and extremists, but because many of them try to believe in God. Lastly, uncomfortable as it may be, it really is the case that the Jews are the masterminds and primary responsible actors, as has been the case in every single one of these civilization-wide attacks in the last 200 years.

Well, at least we are the masterminds, so that's nice.

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[Eugene Volokh] Journal of Free Speech Law: "Opening Dialogue" (The Future of Free Speech Symposium) by Lee C. Bollinger & Geoffrey R. Stone

The article is here, though you can also read the full symposium; the introductory paragraphs (from Lee Bollinger's part of the dialogue):

To set the stage for the excellent essays that make up this volume on the future of free speech, let's begin where we often do when thinking together about the First Amendment: with some basic facts and fundamental observations about the constitutional command that "Congress shall make no law … abridging the freedom of speech, or of the press."

Of course, in the United States, "free speech" is not only part of the constitutional Bill of Rights; it is also a cultural and social norm by which we choose to live. Several of the essays in this volume therefore take note of how the meaning and health of "free speech" depend both on judicial interpretations of the First Amendment and on how all citizens and institutions interpret and abide by the general principle. Still, in our highly legalized, and constitutionalized, national culture, it is only natural that the interpretation of the constitutional right drives both the public and the private spheres in which "free speech" operates.

To begin, here are several observations worthy of note for those not fully steeped in the First Amendment. First, the idea of a First Amendment right of free speech, as we understand it today, is a relatively recent invention. The Supreme Court's jurisprudence on the First Amendment dates back to only a little more than a century ago. Although the First Amendment has been part of the Constitution since 1791, the Court did not begin interpreting its meaning until 1919, in cases arising out of World War I. (To mark the centennial of that moment, in 2019, we convened a group of prominent scholars, judges, and lawyers to create a collection of provocative and insightful essays in a book we called The Free Speech Century.)

Since 1919, there have been thousands of judicial decisions about "free speech" and "free press," which together constitute a massive and complex jurisprudence around the subject of the First Amendment. You and I are the professorial by­product of that development. When we began teaching as law professors in 1973, the First Amendment was merely one part of a conventional course on Constitutional Law. Within a few years, though, the Supreme Court's First Amendment jurisprudence became so dense and complex as it decided ever-more cases on these issues that law schools and constitutional law scholars thought it appropriate to subdivide the field of constitutional law into separate, free-standing courses, one of the most important of which focused exclusively on the First Amendment.

Over the past century, the scope of protections afforded citizens under the First Amendment has ebbed and flowed, although for the most part it has expanded dramatically. At the very beginning, in 1919, in the context of the hysteria surrounding World War I and the Bolshevik Revolution, the U.S. government prosecuted and punished people who merely dissented from the government's prevailing views, especially about the war and the draft. Looking back on that era today, it is surprising that the Supreme Court chose not to use the First Amendment to protect those who challenged the government's policies from often severe censorship. From the standpoint of how our nation now views the First Amendment, this was an inauspicious beginning indeed….

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[Curtis Bradley] New Book on Historical Gloss and Foreign Affairs, Part III

This is the third of five posts about my new book, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice. In the last post, I discussed the rise of executive agreements. In this post, I consider how the United States terminates and withdraws from treaties and executive agreements.

The Constitution specifies a process for making treaties (requiring the advice and consent of two-thirds of the Senate) but it does not mention anything about terminating or withdrawing from them. Yet the United States must have the same ability as other nations to get out of its treaty commitments—for example, when the other party is breaching the treaty or when circumstances have changed such that the treaty relationship no longer makes sense.

Many modern treaties in fact have withdrawal provisions, allowing parties to leave the treaty after giving notice, and surely the United States has a right to invoke those provisions.

But how is this to be done? Must the President go back to two-thirds of the Senate and get its permission before withdrawing? The history on this subject is complicated, as I documented in a 2014 article.

When presidents wanted to terminate treaties in the nineteenth century, then generally sought Congress's or the Senate's approval. That started to change in the early twentieth century, and then unilateral presidential terminations started becoming the norm in the Franklin Roosevelt administration in the 1930s and 1940s.

This shift was relatively uncontroversial until President Jimmy Carter acted to terminate a mutual defense treaty with Taiwan in the 1970s, as part of his decision to recognize mainland China. A few members of Congress sued him, arguing that he lacked the authority to act by himself.

The Taiwan treaty termination case went all the way up to the Supreme Court. But the Court held in Goldwater v. Carter that the case was not justiciable, with a plurality of Justices concluding that it involved a political question. Since then, presidents have terminated dozens of treaties unilaterally, usually without constitutional controversy.

The executive branch claims, reasonably in my view, that there is enough practice that it constitutes historical gloss in support of a presidential termination authority. A 2018 Office of Legal Counsel memorandum reasons, for example, that "In view of the historical examples of presidential action, combined with what has usually been congressional acquiescence, there can no longer be serious doubt that the President may terminate a treaty in accordance with its terms."

This is also the view of the Restatement (Fourth) of the Foreign Relations Law of the United States (2018), which contends that, "According to established practice, the President has the authority to act on behalf of the United States in suspending or terminating U.S. treaty commitments and in withdrawing the United States from treaties." (Full disclosure: I was one of the Reporters who worked on the Restatement.)

What about executive agreements, which (as I discussed in my last post) are made based on either majority congressional approval (congressional-executive agreements) or the President's independent authority (sole executive agreements).

There has never been any real question that presidents can withdraw from sole executive agreements, given that they can enter into these agreements without congressional approval. And modern historical practice, spanning many presidential administrations, appears to support a unilateral presidential authority to withdraw from congressional-executive agreements as well. Citing my scholarship, the Justice Department's Office of Legal Counsel (OLC) has concluded that this is the case.

Importantly, though, the power to terminate a congressional-executive agreement does not give the President the power to terminate legislation that implements that agreement, since it is well settled that only Congress can repeal legislation.

This does not necessarily mean, however, that a statute implementing an agreement will continue to operate after the agreement is terminated. If Congress has expressly or implicitly made the operation of the statute conditional on the continued operation of the agreement (which it has done for some of the legislation implementing trade agreements, for example), the statute will cease to have effect upon termination.

As I discuss in the book, from the perspective of historical gloss, the president's power of treaty termination is best viewed as a concurrent power, falling within Justice Jackson's intermediate "zone of twilight" category from Youngstown. As such, it should be subject to limitation through statute or through reservations attached by the Senate when it gives its advice and consent to treaties. OLC has in recent years advocated a contrary view, which I criticize in the book.

As I conclude at the end of Chapter 5:

As a matter of practice, it seems settled that the President today can act unilaterally in terminating U.S. treaty commitments, at least to the extent that international law allows for such termination. This is how most treaty terminations are now accomplished, and most of them generate little constitutional controversy. This practice is bipartisan and longstanding.

The modern practice, it bears emphasizing, reflects a change in constitutional understandings. Historical practice through at least the late nineteenth century reflected an understanding that congressional or senatorial approval was constitutionally required for the termination of U.S. treaties. Not only was Congress or the Senate almost always involved in treaty terminations but presidents generally acted as if they needed such involvement. The chief debate was simply over whether the full Congress or merely the Senate should be involved in treaty terminations, and historical practice was viewed as relevant to that debate.

Very likely the change in treaty-termination practice was driven in part by other changes—such as the increased role of the United States in the world—that were contributing to the enhancement of executive authority across a wide range of issues. Both the growth in treaty making in general and the increasingly widespread inclusion of unilateral withdrawal clauses in treaties probably also were factors. But lawyers, including those within the State Department as well as legal scholars, also appear to have played a role in assessing and influencing the relationship between the constitutional practice and constitutional understandings. While its role was less direct, the Supreme Court also may have helped facilitate the shift, through its increasingly deferential posture towards the executive branch starting in the 1930s.

 

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[Josh Blackman] Today in Supreme Court History: October 9, 1954

10/9/1954: Justice Robert H. Jackson dies.

Justice Robert H. Jackson

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[Eugene Volokh] Young Kansas City Chiefs Fan's (and Family's) Defamation Lawsuit Against Deadspin Based on Blackface Allegations Can Go Forward

From yesterday's by Delaware trial court Judge Sean Lugg in Armenta v. G/O Media, Inc.:

Deadspin published an image of a child displaying his passionate fandom as a backdrop for its critique of the NFL's diversity efforts and, in its description of the child, crossed the fine line protecting its speech from defamation claims.

On November 26, 2023, the Armenta family, a mother, father, and their minor son, traveled from California to Las Vegas, Nevada to attend an NFL game between the Las Vegas Raiders and the Kansas City Chiefs. To support his favorite team, H.A., the Armentas' minor son, wore Native American headdress, painted his face black and red, and donned a Chiefs jersey. During the game, a television broadcast focused briefly on H.A. Soon afterwards, still images, or "screenshots," of the television broadcast circulated online.

The following day, Deadspin published an article, with an accompanying screenshot, describing the boy as wearing "Black face" in a display of racial animus toward African Americans and "Native headdress" to display his hatred toward the Native American. The article further surmised that Raul and Shannon Armenta, H.A.'s parents, taught H.A. that hatred.

The court allowed the Armentas' defamation claim against Deadspin to go forward:

Generally, statements labeling a person as racist are not actionable. "A term like racist, while exceptionally negative, insulting, and highly charged—is not actionable under defamation-type claims because it is a word that lacks precise meaning and can imply many different kinds of fact." In Cousins, the Delaware Supreme Court explained that the defendant's "personal view of what is racist" was not provably false and upheld the trial court's dismissal of the defamation claim:

It cannot be denied America is in the midst of an ongoing national debate about what it means to be racist. To be sure, there is nearly universal agreement that some behaviors are racist: these include the use of racial slurs, the practicing of overt racial discrimination, and the commission of racially motivated violence…. But when a wider net is cast, this consensus quickly vanishes: it is clear to us that Americans disagree about a long and growing list of things that to some are racist and to others are not. It is not our role here to enter into this debate and decide who is right and who is wrong. In fact, we think that the First Amendment is clear that doing so would be the opposite of our role.

Deadspin argues that the statements alleging H.A. wore Black face are nonactionable for the same reasons that calling him racist would be non-actionable. {"Blackface is used to mock or ridicule Black people; it is considered deeply offensive." Deadspin, in recasting Black face as "culturally insensitive face paint" in the December 7 Update, recognizes the negative understanding of the descriptive term.} … But there is a legally significant distinction between a statement calling someone a racist and a statement accusing someone of engaging in racist conduct; expressions of opinion are not protected if they imply an assertion of an objective, defamatory fact. Two recent decisions applying California law, Overhill Farms, Inc. v. Lopez (Cal. Ct. App. 2010) and La Liberte v. Reid (2d Cir. 2020), assist in clarifying this distinction.

The Court in Overhill Farms held that "a claim of racially motivated employment termination is a provably false fact." In that case, a group of employees accused their employer of engaging in racist firings of Hispanic workers as a pretext to hide racist and discriminatory abuse against Latina women immigrants. After the employer sued for defamation, the employees moved to dismiss, arguing that their statements were non-actionable opinions. The California Court of Appeals denied the employees' motion, reasoning:

[D]efendants did not merely accuse [their employer] of being "racist" in some abstract sense …. [I]n almost every instance, defendants' characterization of [their employer] as "racist" is supported by a specific reference to its decision to terminate the employment of a large group of Latino immigrant workers. The assertion of racism, when viewed in that specific factual context, is not merely a hyperbolic characterization of [the employer's] black corporate heart—it represents an accusation of concrete, wrongful conduct…. [T]he statements reflected in defendants' written press release, leaflets and flyers accused Overhill of more than harboring racist attitudes; they accused Overhill of engaging in a mass employment termination based upon racist and ageist motivations. Such a contention is clearly a "provable fact;" indeed an employer's motivation for terminating employment is a fact plaintiffs attempt to prove routinely in wrongful termination cases.

 

In La Liberte v. Reid, a community activist brought suit after a television host republished two photographs of her at a pro-immigration rally with captions alleging racist conduct. The first caption accused the plaintiff of screaming "You are going to be first deported … dirty Mexican!" at a 14-year-old boy. The second caption compared a photograph of the plaintiff to white Americans yelling at the Little Rock Nine. The television host moved to dismiss the activist's defamation claims, arguing that her statements were "nonactionable statements of opinion." The trial court agreed and granted dismissal. The Second Circuit Court of Appeals reversed, explaining:

A reader could interpret the juxtaposition of the Photograph with the 1957 Little Rock image to mean that [plaintiff] likewise screamed at a child out of racial animus—particularly in light of [defendant's] comment that "[h]istory sometimes repeats." That interpretation is bolstered by [defendant's] description of the white woman in the Little Rock photograph as a "person screaming at a child, with [her] face twisted in rage" and [her] comment that it was "inevitable" that the photos would be juxtaposed. [Defendant] thus portrayed [plaintiff] as a latter-day counterpart of the white woman in 1957 who verbally assaulted a minority child. Like the defendants in Overhill Farms, [defendant] "did not merely accuse [plaintiff] of being 'racist' in some abstract sense." Rather, her July 1 Post could be understood as an "accusation of concrete, wrongful conduct," which can be proved to be either true or false. That makes it potentially defamatory.

The Armentas contend that the Original Article and its Updates involve defamatory statements regarding conduct that is provably false and, therefore, this Court should be guided by Overhill Farms and La Liberte. These statements include:

(1) H.A. was wearing "Black face;"

(2) H.A.'s conduct in wearing "Black face" was motivated by his hatred of Black people;

(3) H.A.'s wearing of a Native headdress resulted from his hatred of Native Americans;

(4) H.A. is part of a "future generation[ ]" of racists who had "recreate[d] racism better than before"; and

(5) Raul and Shannon Armenta "taught" their son, H.A., "racism and hate" in their home.

Deadspin's audience could understand its portrayal of H.A. to mean that his entire face was painted black and, because his entire face was painted black, it was H.A.'s intent to disrespect and hate African Americans. The publication went beyond an expression of opinion and flatly stated H.A.'s motivation for appearing as he did.

Similarly, a reader could be left with the belief that H.A. wore a Native American headdress as a signal of disrespect to that population. Any doubt as to the thrust of these representations is resolved in the opening line of the article, where the author unequivocally asserts, "It takes a lot to disrespect two groups of people at once. But on Sunday afternoon in Las Vegas, a Kansas City Chiefs fan found a way to hate Black people and the Native American at the same time."

While arguably couched as opinion, the author devotes substantial time to describing H.A. and attributing negative racial motivation to him. Further, the article may be reasonably viewed as derogating those who may have taught him—his parents. A reader might not, as Deadspin contends, interpret this assertion as a reflection of the author's opinion. To say one is a racist may be considered opinion, but to plainly state that one's attire, presentation, or upbringing demonstrates their learned hatred for identifiable groups is actionable. A reader may reasonably interpret the Article's assertion that H.A. was wearing Black face as fact….

The CBS broadcast showed H.A. for approximately three seconds. In those three seconds, viewers could see that H.A.'s face was painted two colors: black and red. Deadspin published an image of H.A. that displayed only the portion of H.A.'s face painted black and presented it as a factual assertion that there was a "Chiefs fan in Black face" at the game. The complaint asserts facts that, reasonably interpreted, establish Deadspin's Original Article and its Updates as provably false assertions of fact….

Deadspin contends that La Liberte and Overhill Farms stand as outliers from decisions recognizing that accusations of racist behavior are "inherently subjective and therefore non-actionable[.]" Not so. They reflect reasoned assessments of the lines between protected and actionable speech and offer a paradigm for identifying and assessing provably false allegations of racial animus. This Court may grant Deadspin's motion under Rule 12(b)(6) only if "under no reasonable interpretation of the facts alleged could the complaint state a claim for which relief might be granted." Applying the analytical framework of La Liberte and Overhill Farms to the facts here, the Armentas maintain a "possibility of recovery." …

Libby Locke, David Sillers, and Jonathan Kaiman of Clare Locke LLP represent plaintiffs.

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[Jonathan H. Adler] Sixth Circuit Allows Enforcement of Ohio Law Barring Foreign Expenditures on Ballot Initiatives

Today a divided panel of the U.S. Court of Appeals for the Sixth Circuit granted the state of Ohio's application of an emergency stay of a district court injunction barring enforcement of an Ohio law prohibiting foreign nationals from spending money to support or oppose a ballot initiative. The district court concluded that the plaintiffs were likely to succeed in their challenge to the law. In OPAWL—Building AAPI Feminist Leadership v. Yost, a divided panel of the Sixth Circuit disagreed.

Judge Thapar wrote for the court, joined by Judge McKeague. Judge Davis dissented.

Writing for the panel, Judge Thapar rejected the plaintiffs' arguments that the prohibition is overbroad and that it unconstitutionally restricts the First Amendment rights of lawful permanent residents. While lawful permanent residents have First Amendment rights, Judge Thapar explained, the state also has a compelling interest in preventing foreign money from distorting domestic self-government.

the "exclusion of aliens from basic governmental processes is not a deficiency in the democratic system but a necessary consequence of the community's process of selfdefinition." Cabell v. Chavez-Salido, 454 U.S. 432, 439 (1982). States can prevent non-citizens from serving as probation officers, see id., or teaching in public schools, see Ambach v. Norwick, 441 U.S. 68 (1979). Why? Because the "distinction between citizens and aliens, though ordinarily irrelevant to private activity, is fundamental to the definition and government of a State." Id. at 75. "It is because of this special significance of citizenship that governmental entities, when exercising the functions of government, have wider latitude in limiting the participation of noncitizens." Id. So, excluding non-citizens from certain activities can advance a compelling interest when those activities form part of the "the process of democratic selfgovernment." Bluman, 800 F. Supp. 2d at 287.

Campaign contributions and independent expenditures are part of our process of democratic self-government. Under Supreme Court precedent, the activities of self-government "include functions as unrelated to the electoral process as teaching in public schools and serving as police and probation officers." Id. at 288 (citations omitted). "[S]pending money to influence voters and finance campaigns is at least as (and probably far more) closely related to democratic self-government than serving as a probation officer or public schoolteacher." Id. at 288–89. It's thus unsurprising that the dissenters in Citizens United emphasized that the Court has "never cast doubt on laws that place special restrictions on campaign spending by foreign nationals." Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 423 (2010) (Stevens, J., concurring in part and dissenting in part). For this very same reason, courts have upheld large-donor disclosure requirements because, in part, they help "ensure that foreign nationals . . . do not seek to influence United States' elections." Indep. Inst. v. Fed. Election Comm'n, 216 F. Supp. 3d 176, 191 (D.D.C. 2016), aff'd, 580 U.S. 1157 (2017); see also SpeechNow.org v. Fed. Election Comm'n, 599 F.3d 686, 698 (D.C. Cir. 2010). . . .

the Supreme Court's approval of excluding foreigners from the process of self-government applies with full force to Ohio's restrictions on lawful permanent residents' political spending. "The statute does not serve a compelling interest in limiting the participation of nonvoters in the activities of democratic self-government; it serves the compelling interest of limiting the participation of non-Americans in the activities of democratic self-government." Bluman, 800 F. Supp. 2d. at 290 (emphasis in original). By definition, lawful permanent residents are not American citizens. Therefore, we have no trouble concluding that Ohio has a compelling interest in preventing foreign influence in its elections and that Ohio's interest extends to preventing independent expenditures by non-citizens.

The court further concluded that the law was sufficiently tailored to this interest.

Ohio can take steps to assure its people that foreign interests haven't unduly swayed its elections without abundant "proof by documentary record." Id. at 447. Addressing a widespread perception of foreign interference makes "perfect sense." Nixon, 528 U.S. at 390. "Leave the perception of impropriety unanswered, and the cynical assumption that [foreign] donors call the tune could jeopardize the willingness of voters to take part in democratic governance." Id. Thus, contrary to the district court's finding, Ohio met its burden of linking spending by lawful permanent residents to preventing foreign interference in Ohio's elections.

Similarly, to maintain public confidence in fair elections, the Court has permitted states "to respond to potential deficiencies in the electoral process with foresight rather than reactively." Munro, 479 U.S. at 195. For example, the Supreme Court has recognized that because "[e]lections vary from year to year, and place to place," it can be "difficult to make specific findings about the effects of a voting regulation." Burson v. Freeman, 504 U.S. 191, 209 (1992). As a result, requiring precise proof of those effects "would necessitate that a State's political system sustain some level of damage before the legislature could take corrective action." Munro, 479 U.S. at 195. So too with a campaign finance restriction: quantifying the precise effects of non-citizens' political expenditures is all but impossible.

Judge Thapar's opinion concludes:

The state of Ohio passed a law restricting the ability of foreign nationals to contribute to state campaigns and make independent expenditures related to state ballot initiatives. Concerns about foreign interference in American politics aren't new. And Ohioans and their representatives have a compelling interest in regulating such influence. We can't interfere with their judgment unless the First Amendment demands it. And here, it doesn't.

Judge Davis dissented. Her dissent begins:

Ohio's § 121 is unlikely to pass constitutional muster applying either strict or intermediate scrutiny. The state is therefore unlikely to prevail on the merits and a stay of the district court's grant of injunctive relief is not warranted. For this reason, I disagree with my colleagues and respectfully dissent.

To begin, § 121 distinguishes itself from federal restrictions on campaign contributions and expenditures under the parallel Federal Election Campaign Act ("FECA") in one constitutionally important way: it defines "foreign national" more broadly than the term is defined in identical contexts. Unlike FECA, § 121 includes lawful permanent residents ("LPRs") in its definition of foreign national. Compare 52 U.S.C. § 30121(a)(1) with Ohio Rev. Code Ann. § 3517.121(A)(2)(a). In defining foreign nationals this way, the law directly burdens LPRs's First Amendment rights. And beyond that, the law implicitly burdens United States citizens based on certain affiliations with LPRs as well as advocacy organizations with LPR members in ways that create uneven regulation of speech when compared to corporations.

United States citizens and lawful permanent residents have First Amendment rights. See Bridges v. Wixon, 326 U.S. 135, 148 (1945) ("Freedom of speech and press is accorded aliens residing in this country."). And I agree with my colleagues' observation that Ohio's statutory regulation of independent expenditures and campaign contributions constitutes a restriction on speech. See Buckley v. Valeo, 424 U.S. 1, 16-23 (1976). As such, § 121 necessarily receives First Amendment scrutiny. The questions that remain, then, are what type of scrutiny should apply and whether Ohio has met its burden under the appropriate level of scrutiny. The answer to the latter question is where I respectfully part ways with the majority.

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[Samuel Bray] Thoughts on the Lackey v. Stinnie Oral Argument

The Court's argument this morning in Lackey v. Stinnie showed some fractures among the justices. My prediction is that there will be a majority in favor of the petitioners, though that is not a totally confident prediction: several justices were clearly in favor of the petitioners, a couple were in favor of the respondents, and the rest asked some questions of each side that did not clearly reveal their thinking.

But the basic reason for the prediction is that the argument took place on more or less formalist territory–a statute with a term of art, a set of precedents that focus the inquiry for attorneys' fees on final judicial action, the policy decisions to depart from the American Rule being made by Congress not the Court, and the characteristics of the preliminary injunction that distinguish it within the timeline of litigation. The terrain on which the discussion happened was not about how the Court can set optimal incentives for public interest litigation. And in this case the formalist terrain is friendly for the petitioner.

There were two strong points made in favor of the respondents. One is the recently unsplit circuits–the Fourth Circuit had a bright-line rule against fee-shifting after a PI, but now that it just reversed that rule en banc (in the case below), there is no circuit that clearly takes that position. One rejoinder to that is that the various tests used are a mess. But another is that  most of the circuits can get it wrong–which is probably a lesson from yesterday's argument in Royal Canin USA. Still, a strong point for respondents is the lack of support in the courts of appeals.

The other point that seemed to carry some weight for the respondents was a hypothetical from Justice Jackson where someone sues today to be able to participate in a parade tomorrow, gets a PI, and then has gotten all the relief needed, because the parade is over. Is that plaintiff a prevailing party? Some of the reasons why the plaintiff might still care about the case came out at oral argument–an annual parade, a request for damages, a declaratory judgment. But several other points are worth making.

First, in the scenario described, the plaintiff would almost certainly not get a PI because of laches in waiting to sue until the day before the parade. So part of what makes it a great hypo–the perfect fit between the PI and all of the relief that is wanted and possible–requires facts that would make a PI unlikely in the real world.

Second, there are lots of older cases saying that a preliminary injunction is never supposed to give you all the relief you want. That traditional principle isn't repeated very much by courts now. But it's a reminder of just how unmoored the PI is becoming from its "hold in place" function.

Third, the answer to the hypo is, as the attorney for the SG's office suggested, that the person who gets the PI for the parade is simply never a prevailing party. There has been no determination of the merits–no judgment of any kind. Even though the compressed timetable of the hypothetical makes it very advantageous to the plaintiff to have the PI, it is still not the relief sought. The complaint could not have been filed asking only for a PI. It would be good in the hypo for the court to consider moving up the decision on the merits to that day before the parade (either summary judgment or trial), but without that, the plaintiff is not a prevailing party.

I've pulled out those two points as the ones from the respondents that resonated the most with the justices. There is another point that a couple of the justices tended to emphasize: that a preliminary injunction is a judgment in the plaintiff's favor, and if unreversed, why is that judgment not enough for prevailing-party status? But a preliminary injunction is not a judgment at all. It is an order–just like a scheduling order or an order appointing a receiver or an order requiring a defendant to bring the disputed property into the custody of the court. Here's how I put it in The Purpose of the Preliminary Injunction (footnotes omitted):

The second feature of the preliminary injunction is that it is not determinative of any question. It is not a final judgment. It is not a decision on the merits. Its denial, like its grant, "determines nothing." This feature is related to the first one because the intermediate quality of the order means that it cannot be a final determination. Its "very purpose is to set a temporary holding pattern for the parties so that the contested legal question need not be settled right away."

The preliminary injunction, therefore, is not final with respect to fact or law. Although the district court does make findings to aid appellate review, these do not bind the court as the case progresses. The judge may change her mind about credibility and inferences, and can take a different view when considering the identical evidence at a later stage. And any legal conclusions that support or follow from the grant of a preliminary injunction are "merely provisional." The preliminary injunction is "an administrative control of an emergency situation, normally to maintain the status quo, until the court is given an opportunity at the trial to adjudicate upon the substantive merits of the cause."

It is true that a preliminary injunction may be practically decisive. By granting or denying one, the court may tip its hand and prompt the parties to settle. But many other things could be practically decisive and prompt settlement: the filing of an impressive complaint, the assignment of the case to a particular judge, a key witness's terrible deposition, a bombshell email found in discovery, the Supreme Court's grant of certiorari, a law firm added by the other side, a new accuser who steps forward—anything that might shift the case out of the uncertainty window that encourages continued litigation. Grant or denial of a preliminary injunction is a data point for attorneys who predict the outcome. It is a big data point, but legally speaking that is all.

This lacuna at the heart of the preliminary injunction—no final determination of anything—has numerous doctrinal consequences . . . .

The question about what happens to a PI after a judgment actually led to some confusion at the end, where the respondents' counsel asserted that after a judgment dismissing the case as moot that "The preliminary injunction order remains good law," suggesting that it might still be in effect unless vacated. But it is not. It is blackletter law that a preliminary injunction does not last beyond the judgment. It automatically dissolves as soon as the final judgment is entered. See U.S. ex rel. Bergen v. Lawrence, 848 F.2d 1502, 1512 (10th Cir. 1988); see also U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1093-1094 (9th Cir. 2010) (collecting cases). In the words of Judge Frank, a preliminary injunction is "interlocutory, tentative, provisional, ad interim, impermanent, mutable, not fixed or final or conclusive, characterized by its for-the-time-beingness." Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 742 (2d Cir. 1953).

One final point. There was an interesting question at the end by Justice Thomas for respondents' counsel about whether, on his theory, any other interlocutory orders would be able to justify an award of attorneys' fees. Counsel hesitated and then suggested no because Section 1292(a) singles out preliminary injunctions for special status in terms of interlocutory appealability. But that's not all Section 1292(a) highlights. It also mentions the appointment of receivers. And that's telling because the interlocutory appointment of a receiver has the same basic function as a preliminary injunction–to preserve the court's ultimate remedial options. The receiver does that by preserving the assets, while the PI does that by regulating the conduct of one or both parties. Both can be consequential steps–hence the interlocutory appeal from appointment/refusal or grant/denial–but both are also firmly interim steps (as distinguished from a final injunction or final appointment of a receiver, master, etc.). The appointment of a receiver during the litigation does not make the plaintiff a prevailing party.

I expect the petitioners will prevail. It is just a big lift for the Court to get where the respondents want to go–in tension with the justices' separation of powers instincts, and it would require rowing back in the other direction from some of the major attorneys' fees cases. Maybe the justices will reserve the question of whether any pre-statutory equitable rules about bad faith cases are still available outside the statute, like the common fund cases. Or maybe not: the justices suggested different positions on this. If the prediction is right that the plaintiffs will prevail, there will almost certainly be statements that if Congress wants to depart from the traditional meaning of "prevailing party," it can change the statute, just as it did for FOIA fee-shifting.

In my view, the petitioners' bright-line rule of no fee-shifting for PIs fits the function of the PI and the role of the Court in dealing with Congress's exceptions to the background principle of the American Rule.

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